Leroy Washington v. Marion County Prosecutor

Indianapolis police stopped a car

driven and owned by Leroy Washington in September 2016.

Washington was arrested and ultimately charged with multiple

Indiana crimes, including dealing in marijuana. Police

seized his vehicle for forfeiture. Washington brought a classaction

constitutional challenge. The district court declared

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Indiana’s vehicle forfeiture statute (I.C. 34-24-1-1(a)(1) read in

conjunction with other provisions in the same chapter) unconstitutional.

The Marion County Prosecutor appealed.

While the appeal pended, Indiana amended the statute. The

Prosecutor argues the amendments fix any constitutional

problems, but Washington disagrees. We remand to the district

court to address the amendments.

I. Background

Washington was driving a vehicle he owned when an Indianapolis

police officer pulled him over on September 21,

2016. Washington was arrested and charged with three felonies:

dealing in marijuana, resisting law enforcement, and obstruction

of justice. The officer had Washington’s vehicle

towed and held for forfeiture pursuant to Indiana Code 34-

24-1-1(a)(1) and 2(a)(1).

On November 1, 2016, Washington demanded return of

his vehicle per I.C. 34-24-1-3. He filed a federal class-action

complaint the next day, claiming the seizures of his vehicle

and the class’s vehicles under I.C. 34-24-1-2(a)(1) violate the

Fourteenth Amendment’s due process clause. In a clarifying

brief requested by the district court, Washington said he challenged

I.C. 34-24-1-2(a)(1) as applied. But the court construed

the challenge as a facial challenge to I.C. 34-24-1-1(a)(1), read

in conjunction with other provisions of that chapter.

In early February 2017, the Marion County Prosecutor’s

Office and the Indianapolis Metropolitan Police Department

released the vehicle to Washington. On February 3, 2017, Defendants

moved to dismiss the case as moot given the vehicle’s

return. Later that month, Washington moved for summary

judgment.

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On August 18, 2017, the district court certified a class and

granted Washington summary judgment. The court declared

I.C. 34-24-1-1(a)(1) (as read in conjunction with other provisions

of the same chapter) unconstitutional for violating the

due process clauses. The court permanently enjoined Defendants

from enforcing it. In particular, the court concluded the

statutory provisions allowing for seizure and retention of vehicles

without an opportunity for an individual to challenge

pre-forfeiture deprivation are unconstitutional. The Prosecutor

appealed. After the judgment, and while this appeal

pended, Indiana amended its vehicle forfeiture statute.

The Prosecutor continues to argue on appeal that the old

version of the statute did not violate the due process clause.

The Prosecutor also argues the new version changed and increased

the available process, thereby ameliorating any “potential”

due process deficiencies identified by the district

court. For example, the Prosecutor argues the amended statute

provides for a probable cause affidavit, a motion for provisional

release, and a shortened window for the Prosecutor

to file a forfeiture complaint. These changes, the argument

goes, satisfy the district court’s due process concerns by allowing

a person interested in a vehicle to challenge pre-forfeiture

deprivation. The Prosecutor moved us to dismiss this

case as moot given the statutory amendments.

But Washington argues the amendments are superficial,

the same or similar problems exist, and the statute as

amended remains unconstitutional. He argues, for example,

that one new provision sets out a procedure the court already

held constitutionally deficient. He argues the court required a

timely post-seizure, pre-forfeiture hearing at a minimum, but

the amendments do not provide this. He argues the

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amendment providing for “provisional release” is meaningless

or illusory because the mere filing of a motion by the Prosecutor

will bar provisional release. He points out that the

amended statute still bars replevin. He argues the statute as

amended prevents a court from asking the core question

(within an appropriate time): Is there probable cause to believe

the vehicle owner had some involvement in the wrongdoing?

Washington maintains that the statute, before and after

the amendments, does not provide due process. In short,

he argues the amendments do not cure the due process deficiency,

do not provide any meaningful impact, and do not

moot his claim.

II. Discussion

The district court concluded Indiana’s statutory provisions

allowing for seizure and retention of vehicles without

an opportunity to challenge pre-forfeiture deprivation are unconstitutional.

Indiana amended the law, but Washington argues

the amendments do not fix the constitutional problems:

When an innocent owner’s vehicle is used by a

third party to commit a crime, the vehicle is

seized by law enforcement. Because evidence of

innocent ownership is not considered at the ex

parte probable cause determination, the Court

will generally order the vehicle to be held. The

prosecutor can then file a motion under Indiana

Code Section 34-24-1-2(j), which prevents provisional

release. The statute does not require any

expedited process for addressing a motion under

[that section]. As a result, the individual

loses the ability to have a prompt hearing to

challenge continued retention of the vehicle.

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The ability of the State to hold property for an

extended period of time, while simultaneously

preventing judicial intervention, creates powerful

leverage that can be used to coerce even innocent

owners to buy back their own property

though a settlement agreement.

(Appellees’ Br., DE 25 at 36.)

Scholars chronicle many problems with forfeiture laws.1

Professor Crepelle observed that in 2015, law enforcement

took more property from Americans than criminals did.2 Justice

Thomas has expressed skepticism of forfeiture.3

1 Note, How Crime Pays: The Unconstitutionality of Modern Civil Asset

Forfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387

(2018); Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and

the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315 (2017); Barclay

Thomas Johnson, Note, Restoring Civility—The Civil Asset Forfeiture Reform

Act of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System, 35

Ind. L. Rev. 1045 (2002); but see Caleb Nelson, The Constitutionality of Civil

Forfeiture, 125 Yale L.J. 2446 (2016) (arguing forfeiture statutes might be

unfair or unwise, but their central characteristics do not violate the Constitution).

2 Crepelle, supra note 1, at 315.

3 “[A]mbitious modern statutes and prosecutorial practices have all

but detached themselves from the ancient notion of civil forfeiture … .”

United States v. James Daniel Good Real Prop., 510 U.S. 43, 85 (1993) (Thomas,

J., concurring in part and dissenting in part). “One unaware of the history

of forfeiture laws and 200 years of this Court’s precedent regarding such

laws might well assume that such a scheme is lawless—a violation of due

process.” Bennis v. Michigan, 516 U.S. 442, 454 (1996). “This system—where

police can seize property with limited judicial oversight and retain it for

their own use—has led to egregious and well-chronicled abuses.” Leonard

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Obviously, vehicle forfeitures are economically painful.

Many Americans depend on cars for food, school, work, medical

treatment, church, relationships, arts, sports, recreation,

and anything farther away than the ends of their driveways.

Cars extend us. Cars manifest liberty. A person released on

bond, retaining a presumption of innocence, might suffer virtual

imprisonment if he cannot regain his vehicle in time to

drive to work.

The district court did not have a chance to address the

amendments. Given that the record and arguments regarding

the amendments are under-developed, we remand this case

to the district court for further proceedings. See Restoration

Risk Retention Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018)

(remanding to district court “to determine the operation and

effect of the amended statute” and to “determine whether the

case is moot”); Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–

63 (7th Cir. 1988) (“We believe that the district court ought to

have the opportunity to reconsider its decision in light of this

most significant pronouncement from the Supreme Court of

Indiana.”); United States v. Elrod, 627 F.2d 813, 819–20 (7th Cir.

1980) (remanding to district court given enactment of statute

during pendency of appeal).4

On remand, the district court should address the parties’

contentions regarding the amendments. Do the amendments

v. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial

of certiorari).

4 The Supreme Court heard argument on Indiana’s forfeiture law and

the Eighth Amendment a day before our argument. The Court recently

issued its opinion, concluding the Fourteenth Amendment incorporates

the Eighth Amendment’s ban on excessive fines. Timbs v. Indiana, No. 17-

1091, 2019 WL 691578, at *2 (U.S. Feb. 20, 2019).

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ameliorate the constitutional problems the district court identified?

The district court should resolve these contentions to

the extent necessary and proper.

If appropriate, the district court should also revisit the

class to determine whether it should be decertified or redefined

in light of the amendments.

At present, we express no opinion regarding the constitutionality

of the old or new versions of the statute, regarding

mootness, or regarding the class. Also, our argument summaries

do not limit the arguments the parties may raise on

remand. We leave latitude to the district court to conduct further

proceedings it deems necessary and proper given the

amendments and the parties’ positions. Any review we are

subsequently called upon to make will benefit from these proceedings

and the reasoning of the district court.

We DENY the Prosecutor’s motion to dismiss. We

REMAND this case to the district court for further proceedings

consistent with this opinion.